Tatro and Brandis (Child support)

[2023] AATA 2929

Tatro and Brandis (Child support) [2023] AATA 2929 (13 July 2023)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025611

APPLICANT:  Miss Tatro

OTHER PARTIES:  Mr Brandis

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  13 July 2023

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care is not revoked. 

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This application relates to a decision by Services Australia – Child Support (Child Support) relating to the particulars of the child support assessment, being the care percentage maintained by Child Support for the children [Child 1] and [Child 2].

2. Miss Tatro and Mr Brandis are the separated parents of [Child 1] and [Child 2].  This matter relates to contact made by Mr Brandis with Child Support on 15 September 2022, advising of changed care arrangements in relation to the children from 10 April 2021.

3. At the time of Mr Brandis’ contact with Child Support, the administrative assessment of child support reflected that Miss Tatro had 100% care of the children and Mr Brandis had 0% care of the children from 6 March 2020.

4. Following the change in care notification, on 23 November 2022, an employee of Child Support made a decision to revoke the existing determination of care and to make a new care determination that from 10 April 2021, Miss Tatro had 51% care of the children and Mr Brandis had 49% care of the children, as notified to Child Support on 15 September 2022.

5. On 29 November 2022, Miss Tatro objected to this decision.

6. On 10 February 2023, an objections officer of Child Support disallowed the objection.

7. On 15 February 2023, Miss Tatro made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision. 

8. The Tribunal hearing was held on 13 July 2023, on which date Miss Tatro spoke to the Tribunal by MS Teams audio and gave evidence on affirmation.  The Tribunal attempted to contact Mr Brandis on the mobile telephone number he had provided but his mobile telephone number was turned off.  After several attempts, the Tribunal made a decision to proceed with the hearing with Miss Tatro only.

9. At the hearing, the Tribunal had before it documents provided by Child Support (1 to 238) and documents provided by Miss Tatro (A1 to A2), copies of which had been provided to the parties prior to the hearing.  Miss Tatro confirmed receipt of the documents with the Tribunal. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The provisions of the Assessment Act relevant to this decision are sections 54F, 54G and 54H. The legal issue for the Tribunal to decide in this matter is whether the existing care percentages maintained by Child Support for the children are to be revoked and, if so, from what date a new care determination is to be made. The Tribunal notes that the existing determination of care provided for Miss Tatro to have 100% care of the children and for Mr Brandis to have 0% care of the children from 6 March 2020.

Should the existing determination of care be revoked under section 54F?

1. The Tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:

   (a)     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)     the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c) section 54G does not apply; and

(d)     subsection (2) applies in relation to the individual.

Note:         The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

1. The Tribunal is satisfied that Mr Brandis contacted Child Support on 15 September 2022 to advise that the care of the children that was actually taking place did not correspond with the percentages of care being maintained for them. Paragraph 54F(1)(a) of the Assessment Act is met.

2. Paragraph 54F(1)(b) of the Assessment Act requires the Tribunal to determine whether the parents’ cost percentages for the children would change if the Tribunal were to determine another percentage of care for the children.

3. The care arrangements for the children from 10 April 2021 onwards are relevant to this decision.  Miss Tatro’s oral evidence to the Tribunal was consistent with her written submissions to Child Support and to the Tribunal, and the Tribunal considered that her evidence was credible and plausible.

4. The Tribunal accepts from the evidence of Miss Tatro that the parties separated in March 2020, at which time Mr Brandis moved out of the matrimonial home and that Mr Brandis returned to the matrimonial home in April 2021.  Miss Tatro described to the Tribunal that, between April 2021 and December 2022 (when Mr Brandis was removed from the home), he spent little time with her or the children, instead spending time on his own in the media room.  Miss Tatro described that Mr Brandis had not done any grocery shopping, or dropping off or picking up of the children, and did not communicate with the children.  Miss Tatro described that she had provided emotional support for the children and had made all day-to-day decisions for them, including around schooling and extracurricular activities.  This included [Child 1]’s move into a secondary school in 2021, which was chosen by Miss Tatro, who signed the forms on her own and organised additional programs for [Child 1] through the school.  Miss Tatro described that Mr Brandis would leave for his employment very early each day and, when home, would have minimal interaction with the children.  He did not attend any of [Child 1]’s Year 7 parent events during 2021.  While Mr Brandis had made mortgage payments upon returning to the home, these ceased for a period of time and Miss Tatro had had to borrow money from her father to meet these costs, in addition to meeting all of the other household expenses. 

5. Miss Tatro told the Tribunal that she had covered all costs for the children, including school camp, music and other extracurricular activities, birthday parties, a holiday away in October 2022, a laptop for [Child 2] and an iPad for [Child 1].  She stated that Mr Brandis had never driven the children anywhere, or purchased food or clothing for them, and had spent the majority of his time in the media room and had not otherwise engaged with the children.

6. Miss Tatro told the Tribunal that she and Mr Brandis reconciled their relationship for a three-week period after he returned to the home in April 2021 and that she then realised he had another girlfriend and he lived in the media room from then on. The Tribunal accepted from this evidence that, aside from a brief period in April 2021, Miss Tatro and Mr Brandis were separated under the one roof up until December 2022 when he was evicted from the home.   Miss Tatro told the Tribunal that, from December 2022 onwards, Child Support had made a new care determination reflecting that the children were in Miss Tatro’s 100% care.

7. In addition to the oral evidence of the applicant, the Tribunal had regard to letters of support provided by Miss Tatro to Child Support, all of which attested to her daily involvement and decision-making around the needs of the two children.  The letters, while not prepared by individuals independent from the applicant, were persuasive in that they suggest that a range of people with whom Miss Tatro has regular contact (both through friendships and through her employment arrangements) consider that Miss Tatro is the sole caregiver for the two children.  The Tribunal had some regard to these letters and considered that they add weight to Miss Tatro’s claims about the care arrangements for the two children.

8. As to whether it is appropriate, given the circumstances of this particular case, to determine another cost percentage for the parents, the Tribunal notes that “care” is not defined in the Assessment Act or in the Registration and Collection Act. The Child Support Guide provides commentary around Child Support’s policy interpretation of the Assessment Act and Registration and Collection Act and, where consistent with the objectives of the legislation, may be followed by the Tribunal. In this case, the relevant part of the Guide is at 2.2.1 and this part states that:

   An object of the Child Support Scheme is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (CSA Act section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.
   In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

   ·    person has control of the child, including having overall responsibility for the child and making

   -major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and

   -arrangements for others to meet the needs of the child (delegated care)

   ·    person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities

   ·    person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child

   ·    child provides for his or her own needs or has those needs met from another source

   ·    child is financially independent or financially supported from another source.

   Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

9. The Tribunal considered that the above commentary is consistent with the objects of the Assessment Act and assists the Tribunal in its findings in the present matter. Having regard to the factors set out above, the Tribunal finds that, between April 2021 and December 2022, Miss Tatro had overall decision-making for the two children. This included both smaller day-to-day decisions such as their meals and social activities as well as larger-scale decisions which included [Child 1]’s secondary school. The Tribunal finds that Mr Brandis played little, if any, role in any decisions around the children during this time.

10. The Tribunal finds that Miss Tatro was the only parent making arrangements for the children’s extracurricular activities and social activities, was feeding and clothing the children and was buying all food and preparing all meals for them.  Miss Tatro was the only parent driving the children to their activities and was paying for all costs associated with the children aside from Mr Brandis’ contribution to mortgage payments for a period of time.  The evidence before the Tribunal suggests that neither child had access to any other financial resources in this period, and neither was financially supported by any other adult, and the Tribunal finds accordingly.

11. The Tribunal has concluded from this evidence and these findings that, from 10 April 2021 when Mr Brandis claimed the care arrangements had changed, Miss Tatro continued to have 100% care of the children. The Tribunal therefore finds that Miss Tatro’s cost percentage would not change from 100%. Paragraph 54F(1)(b) of the Assessment Act is not met and the Tribunal is unable to revoke the existing determination of care under section 54F of the Assessment Act.

Should the existing determination of care be revoked under section 54G?

1. Subsection 54G(1) of the Assessment Act requires an existing determination of care to be revoked where:

   (a)   a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and

   (b)   the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

   (c)   a determination of the other responsible person's percentage of care for the child has been made under section 50; and

   (d)   the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances.

2. The Tribunal finds that this section does not apply, on the basis that Mr Brandis did not have at least regular care (defined in subsection 5(1) of the Assessment Act to be at least 14% but less than 35% care) under the existing determination of care. The Tribunal is unable to revoke the existing determination of care under section 54G of the Assessment Act.

Should the existing determination of care be revoked under section 54H?

1. Section 54H of the Assessment Act provides the following circumstances in which the Registrar “may” revoke an existing determination of care:

   (a)   the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)   the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person's percentage of care for the child, the other percentage would not be the same as the person's existing percentage of care for the child; and

   (c) sections 54F, 54FA and 54G do not apply; and

   (d)   subsection (2) applies in relation to the individual.

2. For the same reasons as those set out above, the Tribunal finds that it is unable to determine another percentage of care for the children which is different to the care percentages reflected in the administrative assessment of child support. Paragraph 54H(1)(b) is not met and the Tribunal is unable to revoke the existing determination of care under section 54H of the Assessment Act.

3. The Tribunal has therefore concluded that the existing determination of care is unable to be revoked under any of the relevant provisions in the Assessment Act and has set aside the decision under review. The effect of the Tribunal’s decision is that the administrative assessment of care, reflecting that Miss Tatro had 100% care of the children and Mr Brandis had 0% care of the children is to remain in place for assessments from 10 April 2021 onwards.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care is not revoked.